This was a claim under s.288 of the Town and Country Planning Act 1990 by which the claimant sought to quash the decision of an Inspector acting on behalf of the Secretary of State dismissing its appeal against the refusal of planning permission for a residential development in the vicinity of a listed building.
One of the grounds of challenge was that the Inspector had erred in refusing to consider amended plans submitted following the local planning authority’s refusal of planning permission. The Inspector had held that the new plans amounted to a “material alteration” to the scheme applied for, and therefore that it would be prejudicial to the public and consultees for them to be substituted. The claimant argued that this was a misdirection, since the relevant test in Bernard Wheatcroft v Secretary of State for the Environment  P. & C.R. 233 was whether there was a “substantial difference” between the new plans and the old plans.
Simon J rejected this argument, holding at paras. 28-29:
“28. …It seems to me it is important to bear in mind that the words used, “substantial difference”, are not the words of a statute but the words used in the Bernard Wheatcroft case. More importantly, perhaps, it is necessary to consider whether there is any real distinction between “substantial difference” and “material alteration.”
29. Applying the principles set out in the cases to which I have referred, it seems to me that there is no material distinction between these phrases. As has been said, the inspector is not writing an examination paper and what is in the Appeal Decision is not to be construed as a statute or a contract.”
Another of the grounds of challenge was that the Planning Inspectorate had refused to hold an oral hearing, despite the claimant’s request for one. Simon J rejected this ground too, holding at paras. 40-43:
“40. Ground three is a complaint that there was no oral hearing. The Claimant’s request for an oral hearing was considered by the Secretary of State. A decision was made for the appeal to be conducted by written representations as provided by section 319(2)(C). That decision appears to have been notified on 23 March 2010.
41. I am satisfied that, in the circumstances, procedural fairness did not require an oral hearing and that the written representation procedure was appropriate. The main issue was correctly identified in paragraph 5 of the appeal decision. That was an issue that was unlikely to be illuminated by an oral hearing.
42. In any event, in the Planning Appeal Form that was advanced to set in motion the planning appeal, the question as to the hearing procedure was answered implicitly with a request for a hearing rather than a decision on the documents, but the question, “Is there any further information relevant to the hearing which you need to tell us about. If so, please explain below,” was answered “no” and the space for comment was left blank.
43 It seems to me that it is incumbent on appellants if they wish to have an oral hearing to set out in, at least in brief summary, the reasons why.”
This was the first time that the High Court has ruled on the lawfulness of a decision by the Planning Inspectorate not to allow a request for an oral hearing since the power to do so was introduced.
Charles Banner appeared for the Secretary of State, instructed by the Treasury Solicitor.